December 14, 2023
ISLAMABAD – A six-member Supreme Court bench, in a 5-1 majority verdict, on Wednesday conditionally suspended its Oct 23 unanimous ruling nullifying military trials of 103 civilians, pending a final judgment.
The order, passed on a set of intra-court appeals (ICAs) challenging its previous ruling, stated that the military trials of 103 civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 would continue.
In the widely praised ruling, a five-member SC bench — comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik — had declared that trying 103 civilians in military courts was ultra vires the Constitution.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
The appeals had been filed by the caretaker federal government as well as the provincial ones in Balochistan, Khyber Pakhtunkhwa and Punjab.
Meanwhile, Sindh had denied filing a purported plea on the same matter, which was not included among the petitions taken up today.
The defence ministry had also moved an ICA before the SC against its judgment, requesting the apex court to suspend the verdict’s operation during the pendency of the appeal.
On Monday, Justice Ijazul Ahsan, who is a member of the three-judge committee constituted to fix cases before different benches, had objected to the bench, saying it should be “deemed as not set up by the committee”.
Justice Ahsan recalled how during the fifth meeting of the committee, it was agreed that since the judgment in the trial of civilians by military courts had been rendered by a five-judge bench, a seven-judge bench should be constituted to hear the ICAs. Instead, a six-judge bench was formed, with Justice Sardar Tariq Masood as its head.
“I categorically and in clear terms stated that in order to dispel any impression of pick and choose, all judges of this court in the order of seniority be included in the appellate bench,” he had stated in a letter to the committee’s secretary.
Separately, former chief justice of Pakistan (CJP) Jawwad S. Khawaja, who is one of the petitioners to challenge the military trials, has also objected to Justice Masood’s inclusion in the bench.
He stated that Justice Masood, along with CJP Qazi Faez Isa, had recused from being a part of the nine-member bench hearing pleas against the military trials.
Today, the Justice Masood-led bench — including Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan — took up 17 ICAs.
During the hearing, Attorney General of Pakistan (AGP) Mansoor Usman Awan urged the court to conditionally allow the military trials of civilian suspects to be resumed.
Announcing its verdict, the Supreme Court said that the trials of 103 civilians would continue.
Observing that the military courts would not issue a final verdict against the suspects, the SC said that the final ruling would be conditional upon the Supreme Court’s orders.
Subsequently, the court issued notices to the respondents and adjourned the hearing until the third week of January.
LHC Bar Association ‘strongly condemns’ suspension
Reacting to the order, the Lahore High Court Bar Association said it would hold a strike tomorrow (Thursday) and boycott court proceedings after the hearing of urgent cases in protest.
In a statement, seen by Dawn.com, it “strongly condemned” today’s decision and voiced its objection to the formation of the bench.
The bar said lawyers did not “accept military courts under any circumstances as the Supreme Court has already declared them void of jurisdiction”.
The hearing
At the outset of the hearing, Justice Masood refused to recuse himself from the bench due to the objections raised.
He suggested to the counsels to read a previous verdict by former Justice Jawwad S Khawaja, adding that it was up to the judge to remain a part of the bench or recuse themselves.
Here, Advocate Latif Khosa, the counsel for Aitzaz Ahsan, who was one of the petitioners against the military trials, objected to the formation of the bench, at which Justice Masood asked him whether he had been issued a notice as a respondent in the case.
“When the respondents will be notified, then we will see your objection,” the judge remarked.
Khosa emphasised he objected as the judge was currently presiding over the case. Faisal Siddiqui, the counsel in pleas filed by civil society members, argued that the government cannot avail the services of a private lawyer.
To this, AGP Awan replied that all legal requirements for the services had been fulfilled and urged the court to first hear the petitioners who had filed the ICAs.
Advocate Salman Akram Raja then asserted that the Supreme Court could not “suspend the verdict nullifying the [military] trials without listening” to counsels in the original pleas.
Khosa then argued that arguments are presented if there are objections to the judges hearing the case. Raja said that if they objected once the respondents were notified, the case would have been “affected”.
Khosa further said that Justice Masood had already voiced his opinion on the case in a previous note, following which the judge reiterated that he would not recuse himself from hearing the appeals.
Here, AGP Awan questioned how the objections could be entertained when the notices had not been issued on the ICAs yet. “The one who objected is himself not present in the court,” he added.
He urged the SC to begin hearing arguments on the appeals first, which the court accepted.
At this point during the hearing, Shumail Butt, the counsel for Balochistan’s Shuhada Forum, began presenting his arguments.
Aitzaz Ahsan then came to the rostrum and urged the court to first decide on the objections raised on Justice Masood’s inclusion, at which the judge once again stated he was not recusing himself.
Justice Mazhar then told the Shuhada Forum lawyer that he would have to edit the appeal after a detailed order was issued.
When Justice Masood directed the AGP to begin presenting his arguments, the latter expressed he would like to offer defence ministry counsel Khawaja Haris the chance to do so first.
Haris then came to the rostrum and argued that the apex court’s Oct 23 verdict did not mention according to which articles of the Constitution, provisions of the Army Act were declared unconstitutional.
He cited a previous case of retired Brig F.B Ali, wherein he said the Army Act’s sections were upheld, adding that a 17-member full court had also declared the judgement as correct when hearing a case on the 21st Amendment.
The defence ministry counsel added that the Supreme Court had previously ruled that if the crime pertained to the military, then the trial could be held in a military court.
At this point, Justice Mazhar inquired the lawyer about his opinion on a “transparent trial” being held and asked how he would ensure that a “fair trial” was held in the military courts.
To this, Haris responded that “civilians also included people such as Kulbhushan Jadhav”, referring to an Indian spy who was captured in Pakistan.
He argued that the Army Act’s jurisdiction over civilians was “already limited” and that provisions pertaining to civilians “could not be declared void”.
Justice Masood then noted that a detailed verdict on the judgment nullifying military trials had not been issued yet, asking if the court should decide the matter without reviewing that.
Here, Justice Saadat also asked, “Khawaja Haris sahib, why not wait for the detailed verdict?”
To this, the lawyer said his request would then be that the apex court allows to resume the military trials of those currently in the military’s custody.
“Not every civilian is being tried in a military court. Only those civilians will be tried in military courts who are a threat to national security,” Awan added.
Justice Masood again observed to wait for the reasons for the Oct 23 verdict to be issued while Justice Saadat also said it would be appropriate to wait for the detailed verdict.
To this, Haris contended: “If we have to wait for the detailed verdict, then the court order (of Oct 23) should be suspended.”
Stating there were “104 people in military custody for the past seven months”, the lawyer insisted it would be “appropriate for the suspects that their trial is completed”.
Khosa voiced his objection to a stay order on the court’s Oct 23 verdict, saying that the judges who made that decision were also Supreme Court judges.
Justice Masood asked rhetorically why the appellate court was made and noted that the provisions about civilians had been nullified.
He wondered under what provisions “terrorists would be tried under after section (2)(1)d was struck down”, to which Raja said he would present satisfactory arguments if the court allowed him to do so.
“Under what law would those be tried who martyred 23 jawans yesterday?” asked Justice Masood, referring to militants storming a compound used by the military in Dera Ismail Khan’s Daraban area yesterday.
Raja reiterated he would address the questions when presenting his arguments, adding that section (2)(1)d was enacted in 1967, after which the 1973 Constitution was legislated, which gave “protection of basic rights”.
AGP Awan then requested the court to allow the military trials to resume conditionally. To this, Justice Masood asked how the court could allow so when certain sections of the Army Act had been nullified.
Here, Justice Mazhar wondered why there was a hurry in deciding the matter, to which Awan replied that trials of “foreigner terrorists could not be held either”.
Justice Hilali then asked, “If the arrested people are terrorists, then why are you acquitting them?” To this, the AGP said, “These people are our citizens but have just gone astray.”
The court then reserved its verdict on whether its previous ruling would be suspended or not, which it announced shortly, ruling that the trials would continue but the military courts would not issue a final verdict on the cases.
The appeals
The ICAs claim that through the order, the SC had traversed beyond its jurisdiction and excluded from the ambit of the Pakistan Army Act (PAA) 1952, civilians who may be guilty of committing offences specified in Section 2 (d)(1) of the PAA, thereby considerably undermining the ability of armed forces to discharge their constitutional duty to defend Pakistan against external aggression or threat of war and thus violating the very letter and purport of Article 245 (1) (functions of armed forces) of the Constitution.
The appeals questioned whether seducing or attempting to seduce any person who was subject to PAA from his duty or allegiance to government, or commission of any offence under the Official Secrets Act 1923 — in relation to any work of defence, arsenal, military establishment or station or military affairs of Pakistan — by civilians were not acts having direct nexus with armed forces.
Thus the civilians accused of these offences are legally triable under PAA as held in and on the touchstone of the principle laid down in a previous case of retired Brigadier F.B. Ali.